Communication from the Commission to the Council and the European Parliament - Disqualifications arising from criminal convictions in the European Union {SEC(2006)220}
Date: 2006-02-21
Institutions: European Commission
Subjects: approximation of laws, criminal law, judicial cooperation in criminal matters in the EU, mutual recognition principle, penalty

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 21.2.2006 
COM(2006) 73 final 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT  

Disqualifications arising from criminal convictions in the European Union 

{SEC(2006)220} 

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COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT  

Disqualifications arising from criminal convictions in the European Union 

1. 

2. 

3. 

1. 

4. 

5. 

1 

2 
3 

A  disqualification  can  be  defined  as  a  measure  which  restricts,  for  a  limited  or 
unlimited period, a natural or legal person from exercising certain rights, occupying 
certain  functions,  engaging  in  certain  activities,  going  to  certain  places  or  carrying 
out  certain  measures1.  It  is  a  category  of  sanction  whose  objective  is  primarily 
preventive. When a person who has been convicted of an offence is deprived of the 
ability  to  exercise  certain  rights  (for  example  the  right  to  work  with  minors),  it  is 
primarily  to  prevent  him  or  her  from  re-offending.  In  an  area  of  freedom,  security 
and  justice  in  which  individuals  should  enjoy  a  high  degree  of  protection,  there 
would  accordingly  be  merit  in  recognising  the  effect  of  certain  disqualifications 
throughout the entire territory of the Union. The issue is all the more pertinent in an 
internal market within which persons move freely. 

Disqualifications  are  a  category  of  sanctions  which  might  need,  under  certain 
circumstances, to be recognised and enforced throughout the Union to be effective. 
This is recognised in the Hague Programme2 where the European Council called on 
the Commission to put forward proposals on enhancing the exchange of information 
from national records of convictions and disqualifications, in particular information 
relating  to  sex  offenders.  This  objective  is  also  set  out  in  the  action  plan  jointly 
adopted by the Council and the Commission on 2-3 June 2005 to give effect to the 
Hague Programme and in the Communication on the mutual recognition of judicial 
decisions  in  criminal  matters  and  the  strengthening  of  mutual  trust  between  the 
Member States adopted by the Commission in May 20053, both of which announce 
the adoption of the present Communication. 

The  present  Communication  seeks  to  clarify  the  concept  of  disqualification,  assess 
the  relevant  legislation  at  European  level  and  outline  the  approach  likely  to  be 
followed in this regard. 

GENERAL CHARACTERISTICS 

A  disqualification  as  defined  under  paragraph  1  is  a  very  broad  concept  which 
requires further clarification for the purposes of this Communication. 

The exclusion of disqualifications not linked to a criminal conviction. In accordance 
with  the  framework  referred  to  in  paragraph  2,  this  communication  concerns  only 
disqualifications  resulting  from  a  criminal  conviction  and  not  e.g.  measures 
imposed  in  the  context  of  ongoing  proceedings,  measures  imposed  for  purely 

Green  Paper  on  the  approximation,  mutual  recognition  and  enforcement  of  criminal  sanctions  in  the 
European Union (“Green Paper on sanctions”), COM (2004) 334 final, 30.04.2004. 
Adopted on 4-5 November 2004 (OJ C 53, 3.3.2005, p. 1). 
COM (2005) 195 of 19.5.2005. 

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preventive purposes on persons who cannot be held criminally liable or prohibitions 
that may result from conduct which does not constitute a criminal offence. 

6. 

Nature  of  the  disqualification.  There  are  different  ways  in  which  a  disqualification 
can result from a criminal conviction: 

–  it  can  be  a  penalty  ordered  by  the  court,  either  as  an  addition  to  the  principal 
penalty  or  as  an  alternative  penalty  if  it  is  ordered  in  place  of  one  or  more 
principal penalties; 

–  it  can  be  an  additional  penalty,  automatically  imposed  as  a  consequence  of  the 

principal penalty, even if it is not ordered by the court; 

–  it can be ordered in administrative or disciplinary proceedings arising as a result 

of a criminal conviction. 

Material scope. The potential range of disqualifications matches the number of rights 
of which a legal or natural person can be deprived (e.g. driving ban, prohibition from 
residing  in  a  particular  area,  exclusion  from  public  procurement  procedures, 
deprivation of civil, civic or family rights). 

Personal scope. Disqualifications can apply to both legal and natural persons. Not all 
Member States recognise the criminal liability of legal persons4. This question does 
not  specifically  concern  disqualifications  and  is  treated  more  fully  in  the 
Commission’s Green Paper on sanctions5. 

Heterogeneity of disqualifications within the Union: as illustrated in the Green Paper 
on sanctions, the Member States’ legislation on sanctions differs widely and the same 
can be said of the legislation on disqualifications. Within a single Member State, the 
potential  range  of  disqualifications  is  broad  and  the  nature  and  the  way  in  which 
these sanctions are enforced can vary considerably. This heterogeneity becomes all 
the  more  visible  when  viewed  from  the  perspective  of  the  European  Union.  While 
certain  disqualifications  exist  in  all  the  Member States  –  for  instance,  driving 
disqualifications – this is by no means the general rule6. 

INVENTORY OF INSTRUMENTS ADOPTED AT EUROPEAN UNION LEVEL 

A  certain  number  of  instruments  adopted  at  EU  level  refer  to  disqualifications.  On 
the  one  hand,  there  are  instruments  which  aim  to  approximate  national  legislation 
concerning disqualifications (section 2.1.). On the other hand, there are instruments 
which deal with the effect that a disqualification measure (or a conviction) ordered in 
one Member State is likely to have in the other Member States (section 2.2.). 

For  example,  Belgium,  France,  Ireland,  the  Netherlands  and  the  United  Kingdom  do  recognize  the 
criminal liability of legal persons, contrary to Greece, Germany or Italy. 
Section 3.1.6. 
This heterogeneity and the difficulties with a general approach were illustrated during the discussion of 
an initiative put forward by Denmark in 2002 with a view to adopting a Council Decision on increasing 
cooperation  between  European  Union  Member States  with  regard  to  disqualifications  (OJ  C  223  of 
19.9.2002, p. 17). This initiative is still before the Council. 

7. 

8. 

9. 

2. 

10. 

4 

5 
6 

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2.1. 

Instruments to approximate penalties 

11. 

These  instruments  are  listed  in  the  Annex  to  this  Communication.  Most  refer  to 
disqualifications as possible penalties available on conviction for particular offences. 
instruments  contain  more  prescriptive  provisions  concerning 
The  following 
disqualifications following a criminal conviction: 

a) 

b) 

c) 

Framework  Decision  2004/68/JHA  on  combating  the  sexual  exploitation  of 
children  and  child  pornography7  requires  the  Member States  to  take  the 
necessary  measures  to  ensure  that  a  natural  person  convicted  of  one  of  the 
offences  covered  by  the  instrument  may  be  temporarily  or  permanently 
prevented  from  exercising  professional  activities  related  to  the  supervision  of 
children  (Article  5(3)).  That  does  not  mean  that  disqualification  must 
automatically  follow  as  a  consequence  of  conviction  for  one  of  the  relevant 
offences but simply that each Member State must provide for the possibility of 
preventing the person from exercising a specific activity as one of the penalties 
available following conviction; 

Framework  Decision  2003/568/JHA  on  combating  corruption  in  the  private 
sector8 contains a similar provision in its Article 4(3); 

The  recent  legislation  concerning  the  procedures  for  the  award  of  public 
contracts  makes  the  process  of  awarding  such  contracts  more  transparent  and 
thus  helps  to  combat  corruption  and  organised  crime.  Article  45(1)  of  the 
public  procurement  Directive9  provides,  in  certain  circumstances,  for  the 
exclusion  from  participation  in  a  public  contract  of  any  candidate  or  tenderer 
who has been the subject of a conviction by final judgment for participation in 
a  criminal  organisation,  corruption,  fraud  to  the  detriment  of  the  financial 
interests  of  the  Communities  or  money  laundering.  The  Directive  applies  to 
both natural and legal persons10. 

A parallel can be drawn here with other EC directives applying to the financial 
sector.  Most  of  these  instruments  contain  a  standard  provision  according  to 
which the management body of the relevant institution must be constituted of 
persons of “good repute”. For example, under the Banking Directive11, a credit 
institution cannot be authorised to perform its duties if the persons concerned 
are  not  of  sufficiently  good  repute.  It  is  therefore  likely  that  their  criminal 

7 
8 

9 

10 

11 

OJ L 13, 20.1.2004, p. 44. 
OJ L 192, 31.7.2003, p. 54. It is interesting that the Convention of 26 May 1997 on the fight against 
corruption  involving  officials  of  the  European  Communities  or  officials  of  Member  States  of  the 
European Union (OJ C 195, 25.6.1997, p. 2) contains no provisions on disqualification.  
Directive  2004/18/EC  of  the  European  Parliament  and  of  the  Council  of  31  March  2004  on  the 
coordination of procedures for the award of public works contracts, public supply contracts and public 
service contracts, OJ L 134, 30.4.2004, p. 114. Member States are required to have implemented this 
Directive by 31 January 2006. 
In  this  connection,  reference  should  also  be  made  to  Article  29(c)  of  the  Services  Directive,  Article 
20(1)(c)  of  the  Supply  Directive  and  Article  24(1)(c)  of  the  Works  Directive  which  are  discussed  in 
more detail in the Annex. The public procurement Directive repeals these provisions with effect from 
31 January 2006. 
Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000 relating to the 
taking up and pursuit of the business of credit institutions, OJ L 126, 26.5.2000, p. 1. 

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records will be checked and that they will not be authorised if they have been 
laundering  or  corruption.  The 
convicted  of  offences  such  as  money 
interpretation of “good repute” is however left to the Member States and there 
is  no  systematic  disqualification  flowing  from  the  commission  of  specific 
offences.  The  same  applies  to  the  legislation  relating  to  investment  firms12, 
trade  in  securities13,  statutory  auditing  of  accounting  documents14  and 
insurance15. 

2.2.  Measures concerning the effect of convictions or disqualifications 

12. 

13. 

12 

13 

14 

15 

16 

17 

The  instruments  concerning  the  effect  that  a  disqualification  measure  (or  a 
conviction) ordered in one Member State is likely to have in the other Member States 
can be divided in three categories. 

A first category includes a series of directives which can be regarded as instruments 
allowing partial mutual recognition. Some of them deal directly with the recognition 
of a disqualification ordered in another Member State (a and b). Others focus on the 
consequences in terms of disqualification that might flow from the recognition of a 
conviction handed down in another Member State (c and d). 

a) 

the  Directives  on  the  exercise  of  the  right  to  vote  and  stand  for  election  at 
municipal16  and  European  elections17.  The  former  allows  a  disqualification 
from  standing  for  election  ordered  in  one  Member State  to  be  recognised  in 
another Member State. The latter requires a disqualification from standing for 
election  ordered  in  one  Member State  to  be  recognised  in  another  Member 
State and allows a disqualification from voting ordered in one Member State to 
be recognised in another Member State; 

See Article 9 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 
on  markets  in  financial  instruments  amending  Council  Directives  85/611/EEC  and  93/6/EEC  and 
Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 
93/22/EEC, OJ L 145, 30.4.2004, p. 1.  
See Articles 5 a and 5 b of Council Directive 85/611/EEC of 20 December 1985 on the coordination of 
laws,  regulations  and  administrative  provisions  relating  to  undertakings  for  collective  investment  in 
transferable securities (UCITS), OJ L 375, 31.12.1985, p. 3. 
See Article 3 of the Eighth Council Directive 84/253/EEC of 10 April 1984 based on Article 54 (3) (g) 
of the Treaty on the approval of persons responsible for carrying out the statutory audits of accounting 
documents, OJ L 126. 12.05.1984, p. 20.  
See Articles 6(1) a and 8 of Directive 2002/83/EC of the European Parliament and of the Council of 5 
November  2002  concerning  life  assurance,  OJ  L  345,  19.12.2002,  p.  1  and  Article  8  of  Directive 
73/239/EC on the coordination of laws, regulations and administrative provisions relating to the taking-
up and pursuit of the business of direct insurance other than life assurance, OJ L 228, 16.08.1973, p. 3 
(as amended by Directive 92/49/EC, OJ L 228, 11.08.1992, p. 1).  
Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise 
of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing 
in a Member State of which they are not nationals, OJ L 368, 31.12.1994, p. 38. Amended by Council 
Directive 96/30/EC of 13 May 1996, OJ L 122, 22.5.1996, p. 14.  
Council Directive 93/109/EC of 6 December laying down detailed arrangements for the exercise of the 
right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union 
residing in a Member State of which they are not nationals, OJ L 329, 30.12.1993, p. 34.  

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b) 

c) 

the Directive on the mutual recognition of expulsion decisions18 aims to allow 
the recognition of an expulsion decision taken by one Member State against a 
third-country  national  who  is  in  the  territory  of  another  Member State.  In 
particular,  it  applies  to  expulsion  decisions  based  on  a  serious  and  current 
threat to public order or national security and taken following a conviction for 
an offence punishable by at least one year’s imprisonment. It does not apply to 
family  members  of  citizens  of  the  European  Union  who  have  exercised  their 
rights  of  free  movement.  They  are  covered  by  Directive  2004/38/EC  which 
strictly  regulates  the  permissible  restrictions  on  freedom  of  movement  and 
underlines that previous criminal convictions cannot on their own justify such 
restrictions 19; 

the  public  procurement  Directive  mentioned  earlier.  This  is  an  instrument 
which entails the partial mutual recognition of convictions since it results in a 
conviction  handed  down  in  one  Member State  normally  having  as  a 
consequence  the  exclusion  from  public  procurement  on  a  Union-wide  basis. 
Where  a  conviction  has  been  handed  down  in  one  Member  State  but  the 
contracting  authority  is  located  in  another  Member  State,  it  may  seek  the  co-
operation  of  the  competent  authorities  of  the  first  Member  State  to  obtain 
information relating to the conviction. 

At  EU  level,  the  Financial  Regulation20  also  sets  up  a  mechanism  for  the 
exclusion  from  European  tenders  and  grants  of  natural  or  legal  persons  who 
have committed certain offences; 

d)  On 7 September 2005, the European Parliament and the Council adopted a new 
Directive on the recognition of professional qualifications21 which will replace 
fifteen  directives  currently  applying  to  this  field.  It  requires  the  competent 
authorities  of  the  host  and  home  Member  States  to  exchange  information 
regarding,  in  particular,  disciplinary  action  or  criminal  sanctions  which  are 
likely  to  have  consequences  for  the  pursuit  of  the  professional  activities  in 
question (Article 56, paragraph 2). This new Directive strengthens the existing 
obligation  to  inform.  However,  as  it  is  currently  the  case,  the  exchange  of 
information does not trigger an automatic disqualification from exercising the 
profession  in  the  host  country.  This  matter  is  left  to  the  host  country.  In  that 
regard,  it  is  worth  mentioning  the  difference  between  this  Directive  and 

18 

19 

20 

21 

Council  Directive  2001/40/EC  of  28  May  2001,  OJ  L  149,  2.6.2001  p.  34.  The  recent  Commission 
proposal  for  a  Directive  of  the  European  Parliament  and  the  Council  on  common  standards  and 
procedures in Member States for returning illegally staying third-country nationals (COM (2005) 391 
final of 1.9.2005) provides for a flexible and comprehensive set of rules, applicable if a third-country 
national  who  is  the  subject  of  a  removal  order  or  return  decision  issued  in  a  Member  State  is 
apprehended in the territory of another Member State. Member States may select different options, one 
of  them  being  mutual  recognition,  depending  on  the  circumstances  of  the  particular  case.  Upon 
adoption of this proposal, Directive 2001/40/EC will become redundant and will therefore be repealed. 
Directive 2004/38/EC  of 29 April  2004  (OJ  L  158,  30.4.2004, p. 77)  consolidates  earlier  instruments 
and will have to be transposed by 30 April 2006.  
Council  Regulation  (EC,  Euratom)  No  1605/2002  of  25  June  2002  on  the  Financial  Regulation 
applicable to the general budget of the European Communities, O J L 248, 16.9.2002, p. 1. See Articles 
93 (b) and 93 (e). 
JO L 255, 30.09.2005, p. 22. 

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Directive 98/5/EC22 relating to the right of establishment for lawyers (which is 
not affected by the new Directive). Since the right of establishment is based on 
the  recognition  of  lawyers’  professional  registration  rather  than  on  their 
qualifications, Directive 98/5/EC ensures that a disqualification ordered in the 
home Member State has effect in the host country. 

14. 

A second category comprises instruments which are not in force or which have been 
ratified by only a limited number of Member States: 

a) 

b) 

the Danish initiative “with a view to adopting a Council Decision on increasing 
cooperation  between  European  Union  Member States  with  regard 
to 
disqualifications”23.  This  initiative,  which  is  still  before  the  Council,  focuses 
on  access  to  employment  and  is  restricted  to  natural  persons.  Moreover,  it 
envisages  only  the  exchange  of  information  between  Member States  and  not 
the mutual recognition of disqualification decisions24; 

the  EU  Convention  of  1998  concerning  driving  disqualifications25.  This 
Convention does not provide for direct recognition of driving bans imposed in 
one  Member State  by  all  the  other  Member States  and  the  mechanisms  it 
establishes  do  not  follow  the  rationale  underlying  the  principle  of  mutual 
recognition.  In  particular,  the  Convention  enables  the  Member State  of 
implementation  to  choose  to  convert  the  foreign  decision  into  a  domestic 
judicial  or  administrative  order.  So  far,  it  has  been  ratified  by  a  very  limited 
number of Member States26. 

Lastly, a third category is made up of resolutions, i.e. non-mandatory acts, to combat 
football-related  violence.  A  Council  Resolution  dating  from  199727  stresses  that 
stadium  exclusions  are  found  to  be  effective  in  preventing  and  containing  disorder 
connected  with  national  football  matches  and  that  it  is  desirable  that  a  stadium 
exclusion  imposed  in  one  Member State  should  be  upheld  for  European  football 
matches  in  the  other  Member States.  A  resolution  of  200328  calls  on  the 
Member States  to  study  the  possibility  of  extending  stadium  exclusions  to  certain 
football  matches  in  other  Member  States  and  linking  this  to  the  imposition  of 
penalties in the event of non-compliance with any such exclusion. 

Directive  98/5/EC  of  the  European  Parliament  and  of  the  Council  of  16  February  1998  to  facilitate 
practice of the profession of lawyer on a permanent basis in a Member State other than that in which the 
qualification was obtained, OJ L77, 14.03.1998, p.36 
OJ C 223, 19.9.2002, p. 17.  
A  parallel  can  be  drawn  here  with  the  Council  of  Europe’s  European  Convention  of  1970  on  the 
International  Validity  of  Criminal  Judgments.  Ratified  by  9  Member  States  (status  as  of  6  October 
2005), it applies in particular to disqualifications. However, the mechanisms contained therein do not 
follow  the  rationale  underlying  the  principle  of  mutual  recognition:  the  Convention  requires  double 
criminality, permits review of the merits of the disqualification, makes provision for the determination 
of its duration and includes the possibility of limiting the extent of the disqualification. 
OJ C 216, 10.7.1998, p. 1. See also explanatory report on the Convention on driving disqualifications, 
OJ C 211, 23.7.1999, p. 1. 
Spain and Slovakia. Status as of 5 October 2005. 
Council  Resolution  of  9  June  1997  on  preventing  and  restraining  football  hooliganism  through  the 
exchange of experience, exclusion from stadiums and media policy, OJ C 193, 24.6.1997, p. 1.  
Council Resolution of 17 November 2003 on the use by Member States of bans on access to venues of 
football matches with an international dimension, OJ C 281, 22.11.2003, p. 1.  

15. 

22 

23 
24 

25 

26 
27 

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2.3. 

Conclusion 

16. 

From the foregoing inventory it can be seen that: 

a) 

b) 

17. 

3. 

18. 

29 

30 
31 

32 

there  is  a  relatively  limited  number  of  European  instruments  that  provide  for 
disqualifications on a mandatory basis, i.e. instruments requiring the Member States 
to include professional disqualifications among the penalties available on conviction 
(see  paragraph  11  a)  and  b))  or  attaching  disqualification  effects  to  certain 
convictions (as in the public procurement Directive); 

With  the  exception  of  the  Directive  on  the  mutual  recognition  of  expulsion 
decisions29, the instruments which deal with the effect of certain disqualifications or 
convictions  outside  the  Member State  of  conviction  do  not  provide  for  genuine 
information  exchange  systems  giving  the  Member States  a  source  of  reliable  and 
complete 
in  other 
information  on  disqualifications  or  convictions  ordered 
Member States. 

The establishment of a system of information exchange concerning driving licences 
is  currently  being  examined  by  the  Commission.  This  initiative  rests  on  recent 
judgments  of  the  Court  of  Justice  which  note  the  existence  of  an  obligation  on  the 
Member States to exchange information in certain circumstances, thereby enlarging 
the system of voluntary information exchange established by Directive 91/439/EEC30 
on  driving  licences.  The  recent  proposal  for  a  Directive  on  driving  licences,  which 
recasts  Directive  91/439/EEC,  additionally  emphasizes  the  need  to  implement  a 
mandatory general information exchange system31. 

POSSIBLE APPROACHES TOWARDS DISQUALIFICATIONS 

Two  different  approaches,  which  are  not  mutually  exclusive,  might  be  followed  to 
ensure that disqualifications become effective tools at EU level in sanctioning certain 
criminal conduct and preventing its repetition. First, one might consider that an EU-
wide  disqualification  from  exercising  certain  activities  should  flow  from  the 
commission  of  certain  offences.  Secondly,  one  might  take  the  view  that,  under 
certain conditions, the effect of a national disqualification should be extended to the 
whole EU territory. In any case, any legislative proposal in this field will be subject, 
in accordance with the Communication of the Commission of 27 April 200532, to an 

In that case, mutual information exchange takes place via an alert entered in the Schengen Information 
System  (SIS)  on  basis  of  Art  96  (3)  of  the  Convention  of  19  June  1990  implementing  the  Schengen 
Agreement. 
OJ L 237, 24.08.1991, p. 1 
COM(2003)621.  The  proposal  aims  in  particular  to  put  an  end  to  “driving  licence  tourism”  and  to 
facilitate  the  implementation  of  the  principle  that  the  same  person  can  hold  only  one  licence.  It 
maintains the provisions whereby Member States can refuse to recognise the driving licence of a person 
whose  licence  has  been  withdrawn  and  indirectly  still  holds  another  licence.  It  also  strengthens  the 
obligations of the Member States by requiring each Member State to ensure that an applicant for a new 
licence is not the subject of a driving ban ordered by the authorities of another Member State (Article 
8(5) of the proposal).  
Communication  from  the  Commission  on  Compliance  with  Charter  of  Fundamental  Rights  in 
Commission  legislative  proposals.  Methodology  for  systematic  and  rigorous  monitoring.  COM 
(2005)172 final of 27.04.2005.  

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in-depth impact assessment study to assess, in particular, its impact on fundamental 
rights. 

3.1. 

Attach the effects of disqualification to the commission of certain offences 

19. 

Theoretically,  the  approach  followed  in  the  public  procurement  Directive  could  be 
applied  to  other  sectors  with  a  view  to  prohibiting  access  to  certain  occupations  or 
activities  throughout  the  Union  following  a  conviction  for  a  particularly  serious 
offence. 

20. 

The adoption of such an instrument is likely to require: 

– 

– 

– 

that the activities and professions concerned be defined; 

a minimum harmonisation of the offences themselves; 

the harmonisation of the duration of the disqualification itself in order to avoid 
potential  discrimination.  Currently,  the  duration  of  a  disqualification  often 
varies  according  to  the  period  for  which  information  stays  on  the  national 
criminal  record.  The  Commission’s  original  proposal  for 
the  public 
procurement  Directive33  harmonised 
the  automatic 
disqualification at five years, but the relevant provision was not carried through 
to the final text. 

the  duration  of 

21. 

In  practice,  the  adoption  of  such  an  instrument  would  mean  that  access  to  certain 
activities becomes, to a certain extent, regulated at European level and will have to 
be justified under the  principles of  subsidiarity and proportionality. This regulatory 
approach  might  prove  inappropriate  for  activities  that  are  not,  as  in  the  public 
procurement Directive, necessarily EU-wide. This is also not the approach adopted in 
the financial sector (see paragraph 11 c) above). 

3.2. 

Provide for the mutual recognition of disqualifications 

22. 

23. 

justice,  extending 

Although  mutual  recognition  is  the  cornerstone  of  the  establishment  of  a  European 
territorial  effect  of 
area  of  freedom,  security  and 
disqualifications could be seen as aggravating the sanction and raises the issue of the 
rights  of  the  individual  who  will  see  the  territorial  scope  of  the  disqualification 
extended  to  the  whole  territory  of  the  European  Union.  In  addition,  there  is 
significant diversity in criminal sanctions in the European Union and extending the 
effect  of  a  disqualification  measure  ordered  in  one  Member  State  throughout  the 
Union  could  be  opposed  by  a  Member  State  which  does  not  impose  this  type  of 
sanction for the offence in question34. 

the 

A  reasonable  approach  in  the  first  instance  would  therefore  be  to  adopt  a  sectoral 
approach and to give priority to mutual recognition of disqualifications in the fields 
for  which  a  common  basis  between  the  Member  States  already  exists.  This 
presupposes  a  sufficient  degree  of  homogeneity  as  regards  sanctions,  which  is 
notably the case where: 

33 
34 

COM (2000) 275 final. 
See the Green Paper on sanctions referred to above.  

EN 

9 

   EN 

 
                                                 
•  the disqualification already exists in all the Member States for a specific category 

of offence (e.g., driving disqualifications) or 

•  a legal instrument specifically requires this type of penalty to be provided for in 
all Member States for certain types of offence (e.g. disqualifications from working 
with children, see paragraph 11 above). If disqualifications are only referred to as 
one out of a possible range of penalties for the conduct that the legal instrument 
requires  to  be  criminalised,  without  requiring  the  Member States  to  provide  for 
this type of penalty, there is no guarantee that a common basis will exist. 

Even  where  such  a  common  basis  does  exist,  certain  difficulties  could  result  from 
differences  between  Member States  on  the  nature  of  the  prohibition35  or  on  its 
substance  (duration,  for  example).  The  room  for  manoeuvre  to  be  left  to  the 
implementing state would need to be defined. 

A PREREQUISITE: IMPROVING THE INFORMATION FLOW 

The two scenarios described above presuppose that information on convictions and 
disqualifications circulate between the Member States. 

24. 

4. 

25. 

4.1. 

Convictions 

26. 

– 

– 

Several  steps  have  already  been  taken  to  improve  existing  information  exchange 
mechanisms: 

On 13 October 2004, the Commission adopted a proposal for a Council Decision on 
the exchange of information extracted from the criminal record36 aimed at securing 
rapid improvements in the current mechanisms for exchanging information between 
the  Member  States,  mainly  by  providing  time-limits  for  the  transmission  of  this 
information. It was adopted by the Council on 21 November 200537. 

On  25  January  2005  the  Commission  presented  a  White  Paper  analysing  the  main 
difficulties  in  exchanging  information  on  convictions  and  making  proposals  for  a 
computerised  information  exchange  system38.  Following  discussions  on  the  White 
Paper,  the  Justice  and  Home  Affairs  Council  of  14  April  2005  agreed  on  a  way 
forward.  On  this  basis  and  in  light  of  the  objectives  defined  in  the  Hague 
Programme,  the  Commission  tabled  on  22  December  2005  a  legislative  proposal 
setting forth an in-depth reform of the existing exchange mechanisms39. Further work 
should  be  carried  out  in  2006  to  improve  access  to  information  on  convictions 
handed down in the European Union against third country nationals. 

27. 

In this context, it is also worth mentioning that on 17 March 2005 the Commission 
adopted  a  proposal  for  a  Council  framework  decision  on  taking  account  of 

35 

36 
37 
38 
39 

For example, some legal systems provide for specific decisions pronouncing such prohibitions while in 
others it is an automatic consequence of a criminal conviction; even when a decision is taken, its nature 
(e.g. administrative or criminal) can differ. 
COM (2004) 664 13.10.2004. 
OJ L 322, 9.12.2005, p. 33. 
COM (2005) 10 25.1.2005. 
COM (2005) 690 

EN 

10 

   EN 

 
                                                 
convictions in the Member States in the course of new criminal proceedings40. The 
proposal  defines  the  conditions  in  which  a  conviction  handed  down  in  another 
Member State should be taken into account in new criminal proceedings concerning 
different facts. 

4.2. 

Disqualifications 

28. 

29. 

30. 

40 
41 
42 

Disqualifications are a form of sanction the nature of which is likely to vary within 
the same Member State and a fortiori from one Member State to the other. They can 
be ordered in the context of criminal, civil/commercial, administrative or disciplinary 
proceedings or be the automatic result of a conviction. Moreover, in certain Member 
States  they  are  more  commonly  ordered  as  administrative  or  disciplinary  penalties 
than  as  “judicial”  penalties.  These  disparities  make  it  difficult  to  gain  access  to 
exhaustive  information,  especially  as  the  rules  concerning  the  organisation  of  the 
national registers also differ widely: all the Member States keep criminal records, but 
the  information  gathered  by  the  Commission  suggests  a  high  degree  of  diversity 
between  Member  States,  particularly  as  regards  the  content  of  such  records41.  In 
some  Member  States,  only  decisions  given  by  the  criminal  courts  are  registered 
whereas  in  others,  the  register  also  contains  decisions  by  civil,  commercial  or 
include 
administrative  authorities.  For  example,  certain  national 
disqualifications from exercising parental authority. 

registers 

The nature of an individual disqualification and the operation of the national register 
concerned  will  therefore  determine  how  it  is  entered  in  the  register.  While 
disqualifications ordered by the criminal courts are in general found in all registers, 
this  is  by  no  means  the  case  for  disqualifications  flowing  automatically  from 
conviction  or  ordered  by  an  administrative  authority  or  a  professional  organisation 
following  conviction.  The  extent  to  which  disqualifications  are  entered  in  national 
registers is therefore likely to vary considerably between Member States. 

The  scope  for  improving  the  exchange  of  information  on  disqualifications  should 
therefore  be  assessed,  with  due  regard  to  the  need  to  ensure  a  high  degree  of 
protection  of  personal  data.  The  processing  of  personal  data  and  the  exchange  of 
information  on  disqualifications  should  in  any  case  comply  with  the  existing  legal 
framework for the processing of personal data in the European Union42. Ideally, the 
aim  should  be  to  enable  a  comprehensive  exchange  of  information  to  take  place  in 
respect of the following types of disqualification: 

i) 

disqualifications ordered by a court following criminal conviction (i.e. as part 
of the criminal conviction); 

COM (2005) 91 17.03.2005. 
See Annex to the White Paper COM (2005) 10.  
See  Directive  95/46/EC  of  the  European  Parliament  and  the  Council  of  24  October  1995  on  the 
protection of  individuals  with  regard  to  the  processing of  personal  data and on  the free  movement  of 
such data (OJ L 281, 23.11.1995) and Regulation (EC) No 45/2001 of the European Parliament and of 
the  Council  of  18  December  2000  on  the  protection  of  individuals  with  regard  to  the  processing  of 
personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 
12.01.2001).  The  Commission  also  adopted  on  4  October  2005  a  proposal  for  a  Council  Framework 
Decision  on  the  protection  of  personal  data  processed  in  the  framework  of  police  and  judicial  co-
operation in criminal matters (COM (2005) 475). 

EN 

11 

   EN 

 
                                                 
ii) 

disqualifications imposed in one Member State that flow automatically from a 
conviction in that same state; 

iii)  disqualifications ordered in one Member State following a criminal conviction 
in  that  Member  State,  regardless  of  the  authority  ordering  them,  where  the 
procedure gives the same guarantees as a criminal procedure; 

iv) 

disqualifications imposed on legal persons for offences or infringements which 
would  have  been  criminal  offences  if  they  had  been  committed  by  a  natural 
person  and  for  which  a  legal  person  can  be  held  liable  (criminally  or 
administratively) in all the Member States43. 

In the light of this, the need to adopt minimum EU rules requiring Member States to 
systematically  register  at  least  some  disqualifications  in  their  national  criminal 
records  -  or  in  registers44  -  where  a  common  basis  already  exists  between  the 
Member States, should be assessed. 

CONCLUSION 

The  existence  of  a  criminal  conviction  triggering  a  disqualification  is  the  common 
denominator  between  the  Member  States.  Improving  access  to  information  on 
convictions  handed  down  in  other  Member  States  should  enable  Member  States  to 
take this information into account, in particular for the purposes of assessing whether 
a  person  should  be  granted  access  to  certain  jobs  or  activities.  The  Commission 
therefore favours an approach based on improving the circulation of information on 
convictions and will pursue the work already undertaken in the years to come. 

Concerning  the  mutual  recognition  of  disqualifications,  the  Commission  favours  a 
“sectoral”  approach,  in  sectors  where  a  common  basis  exists  between  the  Member 
States.  This  view  is  shared  by  a  majority  of  Member  States.  Such  a  common  basis 
notably  exists  with  regard  to  disqualifications  from  working  with  children  and 
driving disqualifications (see paragraph 23). In October 2004, Belgium submitted an 
initiative on mutual recognition of disqualifications from working with children as a 
result  of  convictions  for  sexual  offences  committed  against  children.  In  the  future, 
the  Commission  also  plans  to  propose  a  Framework  Decision  to  replace  the  1998 
Convention concerning driving disqualifications (see paragraph 14 b)). The objective 
will  be  to  supplement  the  existing  EC  instruments  with  a  view  to  ensuring  the  full 
recognition of driving disqualifications. 

Several EU instruments require Member States to take the necessary measures so that legal persons can 
be  held  liable  (criminally  or  administratively)  for  the  offences  to  which  the  instrument  applies  and 
sentenced accordingly. This means that, at least for a limited list of offences, legal persons can be liable 
in all the Member States.  
Irrespective  of  the  type  of  liability,  the  frequency  with  which  penalties  imposed  on  legal  persons  are 
entered in national registers varies according to the Member State (see Annex to the White Paper COM 
(2005)  10).  In  countries  which  recognise  the  criminal  liability  of  legal  persons,  the  national  criminal 
record often but not always covers both natural and legal persons. Progress would undeniably be made 
if penalties (including disqualifications) imposed on legal persons for offences which would have had a 
criminal nature if they had been committed by a natural person were systematically entered in a national 
register. 

31. 

5. 

32. 

33. 

43 

44 

EN 

12 

   EN